Citation Nr: 1717246
Decision Date: 05/18/17 Archive Date: 06/05/17
DOCKET NO. 13-19 429 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama
THE ISSUES
1. Entitlement to service connection for an acquired psychiatric disorder, to include depression, bipolar disorder, mood swings, and a nervous disorder.
2. Entitlement to service connection for a low back disorder.
3. Entitlement to service connection for a bilateral knee disability.
4. Entitlement to service connection for a bilateral foot disability.
5. Entitlement to an initial evaluation in excess of 10 percent for degenerative disc disease of the cervical spine.
6. Entitlement to an initial compensable evaluation for subluxation of the right thumb.
REPRESENTATION
Appellant represented by: Ronald C. Sykstus, Attorney at Law
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Christopher Murray, Counsel
INTRODUCTION
This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014).
The Veteran had active military service from August 1985 to November 1994.
This case initially came before the Board of Veterans' Appeals (Board) on appeal of a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama.
The Veteran testified before the Board at a June 2014 hearing conducted via videoconference. A transcript of the hearing is of record.
This case was previously before the Board in July 2014, at which time the appeal was remanded to the Agency of Original Jurisdiction (AOJ) for further development. The issues of service connection for an acquired psychiatric disorder, a low back disorder, bilateral knee disability, and bilateral foot disability are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ.
FINDINGS OF FACT
1. The Veteran's cervical spine disability is manifest by no more than subjective complaints of pain and decreased range of motion with flexion of the cervical spine limited to more than 30 degrees and a total combined range of motion of the cervical spine greater than 170 degrees; there is no objective evidence of muscle spasm or guarding resulting in an abnormal gait or abnormal spinal contour, ankylosis, or associated neurological disability.
2. The Veteran's right thumb disability is manifest by no more than subjective complaints of pain and decreased grip without objective evidence of ankylosis or a gap of less than one inch between the thumb pad and the fingers.
CONCLUSIONS OF LAW
1. The criteria for an initial evaluation in excess of 10 percent for degenerative disc disease of the cervical spine have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.1, 4.7, 4.71a, Diagnostic Codes 5237 and 5242 (2016).
2. The criteria for an initial compensable evaluation for subluxation of the right thumb have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.1, 4.7, 4.71a, Diagnostic Code 5228 (2016).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Duties to Notify and Assist
When VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004).
The Veteran has been provided notice letters throughout the appeal that address all notice elements required as to the issues considered herein. There has been no allegation of notice error in this case. See Shinseki v. Sanders/Simmons, 556 U.S. 396 (2009).
VA must also make reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2016).
Service treatment records are associated with claims file. All available post-service treatment records identified by the Veteran have also been obtained. VA's duty to assist the Veteran in locating records has been satisfied. The Veteran has been afforded a VA examination when warranted. See 38 U.S.C.A. § 5103A(d); see also 38 C.F.R. § 3.159(c)(4) (2016). There is no evidence that additional records have yet to be requested, or that additional examinations are in order.
The instant appeal has been previously remanded for further development, specifically to obtain VA treatment records. While, as discussed below, there may be outstanding VA treatment records, these records are limited to those generated prior to 2002 and are not relevant to the severity of the Veteran's cervical spine and right thumb disabilities during the appeal period, which dates to March 2009. As such, the Board finds there has been substantial compliance with the remand directives, and adjudication of the appeal may proceed as to the issues decided herein. See Stegall v. West, 11 Vet. App. 268, 271 (1998).
In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issues on appeal is required to comply with the duty to assist as to these issues. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159.
Analysis
Board decisions must be based on the entire record, with consideration of all the evidence. 38 U.S.C.A. § 7104. The law requires only that the Board address its reasons for rejecting evidence favorable to the claimant. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000).
VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant.
Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).
Evidence to be considered in the appeal of an initial assignment of a disability rating is not limited to that reflecting the then current severity of the disorder. Fenderson v. West, 12 Vet. App. 119 (1999). In Fenderson, the Court also discussed the concept of the "staging" of ratings, finding that in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Fenderson at 126-28; see also Hart v. Mansfield, 21 Vet. App. 505 (2007).
Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). The factors involved in evaluating, and rating, disabilities of the joints include weakness; fatigability; incoordination; restricted or excess movement of the joint, or pain on movement. 38 C.F.R. § 4.45.
I. Degenerative Disc Disease of the Cervical Spine
The Veteran's lumbar spine disability has been assigned an initial evaluation of 10 percent throughout the appeal period.
Under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, unfavorable ankylosis of the entire spine warrants a 100 percent rating. Unfavorable ankylosis of the entire cervical spine warrants a 40 percent rating.
Forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine warrants a 30 percent evaluation.
Forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spine contour such as scoliosis, reversed lordosis, or abnormal kyphosis warrants a 20 percent rating.
Forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees, or combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees, or muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more of the height warrants a 10 percent rating.
Note (1): Evaluate any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code.
Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion.
Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted.
Note (4): Round each range of motion measurement to the nearest five degrees.
Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis.
Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. 38 C.F.R. § 4.71a, Diagnostic Codes 5237-5243.
Turning to the record, at a May 2010 VA examination, the Veteran reported cervical spine pain after prolonged positioning of the head and neck, which he treated with heat and lidocaine patch without injections or physical therapy. Inspection of the spine revealed normal posture, head position, and gait without guarding, spasm, or ankylosis of the cervical spine. Range of motion testing revealed forward flexion from zero to 45 degrees, extension from zero to 35 degrees, lateral flexion from zero to 35 degrees bilaterally, and lateral rotation from zero to 70 degrees bilateral; the total range of motion of the cervical spine was 290 degrees of motion. There was no additional loss of motion following repetitive testing.
At a September 2016 VA examination, the Veteran reported neck stiffness due to sleep position and prolonged standing with paraspinous/bilateral pain. There were no signs of symptoms of radiculopathy or other neurologic abnormalities, nor was there evidence of ankylosis of the spine or intervertebral disc syndrome. Range of motion testing revealed forward flexion from zero to 45 degrees, extension from zero to 45 degrees, lateral flexion from zero to 35 degrees bilaterally, and lateral rotation from zero to 70 degrees bilateral; the total range of motion of the cervical spine was 300 degrees of motion. There was no additional loss of motion following repetitive testing.
Applying the range of motion measurements to the General Ratings Formula, the above evidence demonstrates the Veteran is not entitled to an evaluation greater than 10 percent for his cervical spine disability at any point during the appeal period. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. There is no medical evidence of forward flexion limited to 30 degrees or less, combined range of motion of the cervical spine to 170 degrees or less, or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spine contour. Id.
The Board has also considered whether a separate evaluation for any neurological disability is warranted. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). However, there is no competent evidence of record to indicate the Veteran suffers from upper extremity radiculopathy or bowel or bladder impairment that would warrant a separate evaluation for neurological manifestations of his cervical spine disability.
In light of the above, the Board finds that the Veteran is not entitled to an initial evaluation in excess of 10 percent for his service-connected cervical spine disability. A preponderance of the evidence weighs against the assignment of an increased initial evaluation, and the benefit-of-the-doubt rule does not apply.
II. Subluxation of the Right Thumb
The Veteran's right thumb disability has been evaluated as noncompensable throughout the appeal period pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5228, pertaining to limitation of motion of the thumb. Under this Diagnostic Code, a gap of less than one inch (2.5 cm.) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers warrants a noncompensable evaluation.
A gap of one to two inches (2.5 to 5.1 cm.) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers warrants a 10 percent evaluation. A maximum 20 percent evaluation is warranted with a gap of more than two inches (5.1 cm.) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers. 38 C.F.R. § 4.71a, Diagnostic Code 5228.
Compensable evaluations are also warranted with objective evidence of ankylosis of the thumb. See 38 C.F.R. § 4.71a, Diagnostic Code 5224.
At a May 2010 VA examination, the Veteran reported joint pain "most of the time" with weakness in the thumb, numbness, and loss of range of motion. While there was evidence of pain and decreased strength, range of motion testing revealed a gap between the right thumb pad and the fingers was less than 1 inch (2.5cm). There was no evidence of ankylosis.
At a September 2016, the Veteran reported a dull pain with decreased grip in the right thumb, particularly on repetitive pulling or handling. Range of motion testing revealed normal motion of the right thumb without a gap between the pad of the thumb and the fingers. No objective evidence of pain or ankylosis was noted on examination.
Applying the range of motion measurements to the relevant diagnostic criteria, the above evidence demonstrates the Veteran is not entitled to a noncompensable evaluation for his right thumb disability at any point during the appeal period. See 38 C.F.R. § 4.71a, Diagnostic Code 5228. In this regard, there is no objective evidence of ankylosis or limitation of motion of the right thumb such that there is a gap of at least one inch between the thumb pad and fingers.
In light of the above, the Board finds that the Veteran is not entitled to an initial compensable evaluation for his service-connected right thumb disability. A preponderance of the evidence weighs against the assignment of an increased initial evaluation, and the benefit-of-the-doubt rule does not apply.
III. Final Considerations
The Board acknowledges the Veteran's subjective complaints of pain through his ranges of motion of the cervical spine and right thumb. However, the Board notes the objective evidence of record indicates such pain does not limit the Veteran's functional range of motion of the cervical spine and/or right thumb to less than those levels discussed above and, as such, does not serve as a basis for an initial evaluation in excess of that assigned herein. See Mitchell v. Shinseki, 25 Vet. App. 32 ("pain itself does not rise to the level of functional loss as contemplated by the VA regulations applicable to the musculoskeletal system.")
The Board also acknowledges the Veteran's contentions that his service-connected cervical spine and right thumb disabilities warrant an evaluation greater than those assigned herein. However, in determining the actual degree of disability, an objective examination is more probative of the degree of the Veteran's impairment. Furthermore, the opinions and observations of the Veteran alone cannot meet the burden imposed by the rating criteria under 38 C.F.R. § 4.71a with respect to determining the severity of his service-connected cervical spine and right thumb disabilities. See Moray v. Brown, 2 Vet. App. 211, 214 (1993); see also Davidson v. Shinseki, 581 F.3d 1313 (2009).
ORDER
An initial evaluation in excess of 10 percent for degenerative disc disease of the cervical spine is denied.
An initial compensable evaluation for subluxation of the right thumb is denied.
REMAND
In the July 2014 remand, the Board noted that the Veteran reports he received treatment at VA facilities as early as August 1994 and instructed that VA treatment records generated prior to 2002 be obtained and associated with the claims file. In an October 2016 request, the AOJ requested from the VA Medical Center (VAMC) dated from 1995 to 2015. However, only electronic records generated from 2002 to the present were obtained. There is no indication that a search of archived records dated prior to 2002, which may not be in electronic form, was conducted by the VAMC. As such, a remand is required to allow for an archival search of these potentially relevant records. See generally Dunn v. West, 11 Vet. App. 462, 466-67 (1998).
In addition, each of the VA opinions obtained in September and October 2016 are inadequate, in that they fail to consider the Veteran's competent lay statements, e.g., foot and back pain, and also provide inadequate rationale. Given these deficiencies, addendum opinions are required with respect to the Veteran's service connection claims. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return an inadequate examination report "if further evidence or clarification of the evidence... is essential for a proper appellate decision").
Accordingly, the case is REMANDED for the following action:
(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.)
1. Obtain and associate with the claims file all outstanding VA treatment records. Specifically, a request should be made for any records generated by VA facilities prior to 2002, to include a specific request to recall any archived records as necessary. Efforts to obtain these records must be associated with the claims file and requests for these records must continue until the AOJ determines that the records sought do not exist or that further efforts to obtain those records would be futile. All attempts to obtain records should be documented in the claims folder.
2. Following completion of the above, forward the claims file to the VA examination who conducted the September 2016 VA orthopedic examination(s) for an addendum opinion regarding the Veteran's lumbar spine, bilateral knee, and bilateral foot disabilities. If this examiner is not available, the file should be forwarded to another examiner with the appropriate medical expertise. If the examiner determines an additional physical examination would be beneficial, one is to be arranged.
Following a review of the claims file, and physical examination of the Veteran if performed, the examiner should address the following:
For each of the Veteran's lumbar spine, bilateral knee, and bilateral foot disabilities, is it at least as likely as not (probability of at least 50 percent) that such disability had its onset or is otherwise etiologically related to the Veteran's active service, including whether arthritis manifest within one year of the Veteran's separation from service in November 1994.
In offering these opinions, the examiner must discuss the Veteran's lay assertions, including that he was diagnosed with arthritis in 1994 and that working on a ship placed great strain on his legs and knees and sometimes required him to bend over for long periods of time. With respect to the Veteran's lay reports, the examiner is instructed that the Veteran's is competent to report symptoms observable to a layperson (e.g., pain), and such statements may not be dismissed solely due to lack of documentation in the medical record.
A complete rationale for any opinion must be provided, including a discussion of the evidence of record and medical principles which led to the conclusions reached.
3. Forward the claims file to the VA examination who conducted the October 2016 VA mental health examination for an addendum opinion regarding the Veteran's acquired psychiatric. If this examiner is not available, the file should be forwarded to another examiner with the appropriate medical expertise. If the examiner determines an additional clinical examination would be beneficial, one is to be arranged.
Following a review of the claims file, and clinical examination of the Veteran if performed, the examiner should opine as to whether it is at least as likely as not (probability of at least 50 percent) that such disability had its onset or is otherwise etiologically related to the Veteran's active service, including whether symptoms of a psychosis manifest within one year of the Veteran's separation from service in November 1994.
In offering these opinions, the examiner must discuss the Veteran's lay assertions, including that he first started experiencing psychiatric problems in service and whether the documented May 1994 in-service altercation represents early manifestations of any psychiatric disorder. With respect to the Veteran's lay reports, the examiner is instructed that the Veteran's is competent to report symptoms observable to a layperson (e.g., depression, anxiety), and such statements may not be dismissed solely due to lack of documentation in the medical record.
A complete rationale for any opinion must be provided, including a discussion of the evidence of record and medical principles which led to the conclusions reached.
4. Review the expanded record and ensure complete compliance with the provisions of this remand. If any development or examination report/addendum opinion is deficient in any manner, implement corrective measures at once.
5. After completing the above, and any other development deemed necessary, readjudicate the Veteran's appeal based on the entirety of the evidence. If the benefits sought on appeal are not granted to the appellant's satisfaction, he and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response.
The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
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MICHAEL D. LYON
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs